Crosby v. State

• Citation: 90 Fla. 381,106 So. 741
• Parties: CROSBY v. STATE.
• Decision Date: 21 October 1925
• Court: United States State Supreme Court of Florida

106 So. 741

90 Fla. 381

CROSBY v. STATE.

Florida Supreme Court

October 21, 1925

Rehearing Denied Dec. 9, 1925.

En Banc.

Error to Circuit Court, Walton County; A.G. Campbell, Judge.

Carl Crosby was convicted of embezzlement, and he brings error. Affirmed.

Syllabus by the Court.

SYLLABUS

Previous service as a grand juror within one year does not of itself disqualify a prospective juror for service as a trial juror in the same court.

If a prospective trial juror was a member of the grand jury which found the indictment upon which the defendant is being tried such juror may be challenged by the defendant for that cause and, if so challenged, should be excused.

Section 2692, Revised General Statutes 1920, deals exclusively with the disqualifications of trial or petit jurors.

In order to disqualify a juror by reason of his relationship by affinity with an interested party, it must affirmatively appear that the connecting relative, on account of the marriage with whom the relationship by affinity arose, is still living, and the marriage otherwise undissolved, or that there is living issue of such marriage; the burden being upon the challenging party.

Ordinarily the disqualification of a juror cannot be established entirely by a presumption of law.

In a criminal trial, if a reasonable doubt exists in the mind of a trial judge as to the qualification of a juror challenged by the defendant for cause, the defendant should be given the benefit of that doubt and the juror excused.

Section 2775, Revised General Statutes 1920, providing that persons more than 65 years of age, and all persons subject to any bodily infirmity amounting to disability, shall be excused from jury duty, creates a personal privilege to the juror himself. It does not have the effect of disqualifying such person for that duty.

Objections to the qualifications of jurors who might be subject to challenge for cause, not raised in the trial court, will not be considered by an appellate court.

An assignment in the following language: "Error apparent on the record"--presents nothing for consideration by an appellate court.

After verdict, all presumptions of law are in favor of the jurors' competency, and the burden of proof is upon one who attacks it.

In a prosecution for embezzlement, under section 5152, Revised General Statutes 1920, it is not error for the trial court to refuse to charge the jury that, before they could find the defendant guilty, the evidence must establish some "felonious or fraudulent or wrongful or corrupt" intent on the part of the defendant to convert, withhold, or secrete the money described in the indictment.

Where the subject-matter of special instructions requested by the defendant has been substantially and correctly covered by the court in its general charge, it is not reversible error to refuse to give such special instructions.

In a criminal trial, where the defendant neither testifies himself nor produces any other witness to testify in his behalf, but during the cross-examination of a state's witness the defendant identifies and offers in evidence on his behalf a written document executed by a third party (a receipt for money paid by the defendant), which document was theretofore unmentioned by the state, and formed no part of the state's case, the defendant is not entitled to the closing argument to the jury, under either section 6080 or section 6081, Revised General Statutes 1920.

(Additional Syllabus by Editorial Staff.)

Term "jury" is ordinarily applied to a petit or trial jury distinctly, and, where grand juror is meant, express designation is usually employed, and this distinction is observed by Rev.Gen.St. 1920, §§ 2771, 2777, 2779-2781, 2788.

[Ed Note.--For other definitions, see Words and Phrases, First and Second Series, Jury.]

"Evidence" and "testimony" are not synonymous terms which can be used interchangeably.

[Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Evidence; Testimony.]

COUNSEL

D. Stuart Gillis, of De Funiak Springs, and Walter Kehoe, of Miami, for plaintiff in error.

Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen., for the State.

OPINION

STRUM J.

Plaintiff in error, hereinafter referred to as the defendant, was indicted for embezzlement; the indictment being predicated on section 5152, Revised General Statutes 1920, relating to embezzlement of money or other property by state, county, or municipal officers. Upon a trial on said charge he was convicted, and to the judgment of conviction takes writ of error.

The indictment charges, in effect, that the defendant, while clerk of the circuit court of Walton county, Fla., whose duty it was to collect, receive, and take into his possession moneys due for the redemption of tax certificates belonging to and held by individual purchasers thereof covering lands sold for delinquent taxes due the state of Florida, and county of Walton, "did collect, receive, and take into his possession, as such clerk, certain moneys due to and the property of McLean Realty Company, a corporation, for the redemption of certain tax certificates, * * * and said moneys so as aforesaid coming into his possession by virtue of his said office as clerk of the circuit court for the said county of Walton, he, the said Carl Crosby, then and there, to wit, on the 18th day of October, A.D.1923, in the county of Walton, state of Florida, did feloniously embezzle and fraudulently and feloniously withhold and convert to his own use. * * * " The sufficiency of the indictment is not before us for review.

During the voir dire examination by the defendant of the prospective jurors called to try the case, one of them, Mr. Douglas, was challenged by the defendant for cause, upon the grounds: (1) That the juror challenged had served as a member of the grand jury in the circuit court of Walton county, Fla., the same court in which the defendant was being tried, within one year; (2) because the juror challenged "is related to Mr. McLean"; and (3) because the juror was 76 years of age and entitled to exemption from jury duty. The challenge for cause was overruled by the court, whereupon the defendant excepted to such ruling, and challenged the juror peremptorily. This exhausted the last peremptory challenge available to the defendant. The record indicates that the defendant desired to exercise another peremptory challenge. It therefore becomes material to determine whether the trial court was correct in overruling the challenge for cause. Young v. State, 85 Fla. 348, text 352, 96 So. 381, text 382; Settles v. State, 75 Fla. 296, 78 So. 287; Mathis v. State, 45 Fla. 46, 34 So. 287; Green v. State, 40 Fla. 191, 23 So. 851.

Previous service as a grand juror within one year does not of itself disqualify a prospective juror for service as a trial juror in the same court. Section 6005, Revised General Statutes 1920, prescribes the circumstances under which a former member of a grand jury is disqualified, by reason of said service, as a trial juror. That section provides:

"No member of a grand jury which finds a bill of indictment shall be put upon a jury for the trial of that indictment, if challenged for that cause by the defendant."

The effect of the section just quoted is not to absolutely disqualify a grand juror for service on a trial jury to try an indictment found by the grand jury upon which he served, but makes such service a challenge for cause which may be waived by the defendant, or not, as he elects. Long v. State, 78 Fla. 464, 83 So. 293, and cases cited. If so challenged, however, the grand juror would be incompetent as a trial juror to try the defendant on such indictment, regardless of whether his service on the grand jury which found the indictment was within one year or not.

Section 2692, Revised General Statutes 1920, deals exclusively with the disqualifications of trial or petit jurors. That portion of the latter section upon which the challenge was based is as follows:

"It shall be grounds of challenge for cause if any person called as a juror in any justice of the peace court, county judge's court, county court, criminal court of record, court of record, circuit court, or any other court whatsoever wherein trial by jury is had, has served as a juror in the court in which he is called at any other time within one year where no regular terms of court are held, or at any other term within one year where regular terms of the court are held."

Since this statute does not in specific terms define the previous disqualifying service to be that of a "trial" juror, the expression "has served as a juror," detached from the remainder of the section and taken alone might be susceptible of a construction which would embrace a grand juror. The term "juror" is sometimes held to include both grand and petit jurors. Clawson v. United States, 114 U.S. 477, 5 S.Ct. 949, 29 L.Ed. 179; Spencer v. United States, 169 F. 562, 566, 95 C.C.A. 60. In the instances cited, however, the legislative intent and the purpose to be accomplished by the statute plainly indicates the inclusion of grand jurors. But whether or not the term "juror" embraces both grand and petit jurors depends altogether upon the intent, purpose, or will of the Legislature in using it. The legislative intent is the essence and vital force of a statutory enactment. State v. Patterson, 67 Fla. 499, 66 So. 659. In appropriate cases, the legislative intent may prevail, even over the literal import of the specific language employed in the statute. Curry v. Lehman, 55 Fla. 847, 47 So. 18. Where the intent is not clearly apparent from the specific language of the statute, it must be deduced from a consideration of the language used,...